Threatening
Telephone Calls & Aggravated
Harassment In The Second Degree : The Need For Legislation

A Tale Of Two Threats

In two cases [ P.I. v. C.D.[2]
andA.M. v. M.I.[3] ]
recently before me I became aware of the need to expand the scope of the Family
Offense [ FCA § 812(1) ] of Aggravated Harassment in the Second Degree [ PL §
240.30(1) ], particularly within the context of domestic violence, to provide
protection for the recipients of threatening telephone calls. In both cases
women were the recipients of death threats, delivered over the telephone, from
men. In P.I. the woman initiated the telephone call while in A.M.
the man " paged " the woman who then initiated the telephone call. In P.I.
I dismissed the Family Offense of PL § 240.30(1) on a motion to dismiss while I
sustained the same Family Offense after trial in A.M. The rationale for
these two decisions explains why it is necessary for legislation to broaden the
scope of PL § 240.30(1).

Malicious Telephone Calls

The victims of domestic violence are often
threatened by
their abusers with physical harm or death
during a telephone conversation. Penal Law § 240.30(1) [ Aggravated Harassment
In The Second Degree ] makes it a misdemeanor to communicate or cause a
communication to be initiated by mechanical or other electronic means in a
manner likely to cause annoyance or alarm to the recipient of the phone call.
PL § 240.30(1) and its predecessor PL §§ 551 and 555 were enacted to protect
the recipients of " malicious " telephone calls[4].

The Initiating Phone Call

Several recent decisions[5]
interpreting PL § 240.30(1) have reviewed the statute's legislative history and
concluded that a necessary requirement is that the defendant must " initiate "
the threatening telephone call. At least, one court[6]
has disagreed with this view finding that " a person need not initiate a
telephone call in order to violate ( PL § 240.30(1) )".

The Precipitating Event

Some Courts[7]
have recognized an exception to the initiation rule, i.e.,

" where a defendant
intentionally precipitates telephone contact from the complainant in order to
use the instrumentality of the phone for the purpose of communicating threats
or abuse "[8].

Precipitating events would include placing a
help wanted ad in a local newspaper which induces the victim to call the abuser[9],
posting signs at a train station which induce strangers to call and harass the
victim[10]
and " paging " the victim who responds by phoning the abuser who then threatens
the victim [11].

The Paradox Of The Initiation Rule

Notwithstanding support for the requirement
that the abuser initiate the phone call[12]
or otherwise induce the victim to
to make the call first[13],
such an analysis creates a paradox which may be inexplicable to the victims of
domestic violence

[ " Call me on the phone and, if I threaten
to kill you, there's not much you or the law can do about ( it ) because, well,
you called me "[14] ].

The Need For Legislation

Because of the strong correlation between
threats of physical violence and making that threat a reality, particularly,
within the context of domestic violence

[ " Threats are acts of domestic
violence because they seek to intimidate and control the
( victim ). Social science research reveals
that threats and harassment, left unchecked, frequently escalate to greater
violence...Many battered women's lives are threatened. Of all women killed by
their abusers, 41% to 50% previously had been threatened with death "[15]
],

there is a need, within the context of a Family Offense [ FCA § 812(1)], to
modify PL § 240.30(1) to make it, unambiguously, applicable to respondents who
harass and threaten their victims regardless of whether they initiate or
precipitate the telephone call[16].

FOOTNOTES

[1].
Thomas A. Dickerson is a Westchester County
Court Judge serving as an Acting Family Court Judge with a Web Site at http://members.aol.com/judgetad/index.html. Judge
Dickerson wishes to acknowledge the assistance of his Principal Law Clerk, Ms.
Brenda V. Mechmann, in preparing this article.

[16].
For example, the following language might be
added to PL § 240.30(1).

" When this subdivision is the basis of a family
offense pursuant to Family Court Act Section 812 Subdivision 1, the initiation
of said communication by the respondent shall not be a required element of the
offense where the communication includes a threat of bodily injury or death ".